Chapter 5.         Search and Seizure

§ 5:1                    Reasonable cause for arrest—Generally

              The typical driving while intoxicated (“DWI”) arrest occurs after a police officer has stopped a motorist for a traffic violation and, during the course of speaking with the driver about the violation, suspects the driver has been drinking alcohol.  The officer will usually ask the driver a number of questions quickly while the driver is looking for his driver’s license, insurance, or registration.  If the officer believes the driver is having difficulty answering his questions, or shows any sign of mental inability to understand and respond to his questioning, he will ask the driver to step out of the vehicle to perform field sobriety testing.  At the time the officer believes he has sufficient probable cause, he will arrest the driver for DWI.

              Article 14.01 of the Code of Criminal Procedure (C.C.P.) provides the statutory authority for an arrest:

              (a) A peace officer or any other person, may, without a warrant, arrest an

offender when the offense is committed in his presence or within his view,

if the offense is one classed as a felony or as an offense against the

public peace.

  (b) A peace officer may arrest an offender without a warrant for any

offense committed in his presence or within his view.

              DWI is a crime against the public peace. Thus, anyone – citizen or police officer – can arrest a driver, without a warrant, if he sees the driver drive an automobile while intoxicated. A club manager had the authority to effect a citizen’s arrest of one of his employees after observing the employee drive over a curb and onto a public street with his headlights off.   A probation officer’s arrest of someone under his supervision has been upheld.

              A tow truck driver who blocks a driver in by positioning his wrecker as to restrict the movement of a vehicle has effected a citizen’s arrest.

              In Miles v. State , a tow truck driver came upon the scene of a motor vehicle accident and offered his service to the driver of one of the crashed vehicles.  The tow truck operator noticed that the defendant spoke with slurred speech, seemed uncoordinated, and stumbled while walking.  The defendant then returned to his vehicle and fled the scene of the accident.  The tow operator, later joined by several other tow

trucks, followed the driver and eventually blocked him in with their tow trucks.  The police arrived and took custody of the defendant.  The 1st District Court of Appeals held that the tow truck operator did effect an arrest by blocking the defendant’s vehicle, even though there was an escape route available to the defendant and that the arrest was based on probable cause supported by the tow operator’s observations of the defendant at the accident scene.

§ 5:2                    --Accidents and unobserved driving

              Since C.C.P. Article 14.01 provides that an officer may arrest without a

warrant for an offense committed in his presence or within his view, officers

responding to the scene of an accident have no authority under the basic

law to arrest someone for DWI without a warrant.  To overcome an argument

challenging the validity of an arrest under such circumstances , Courts rely on C.C.P. Article 14.03 which states, in part:

              (a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under circumstances which

reasonably show that such persons have been guilty of some felony,

violation of Title 9, Chapter 42, Penal Code, breach of the peace, or

offense under Section 49.02, Penal Code, or threaten, or are about to

commit some offense against the laws; ....

              Numerous Texas courts have upheld otherwise improper DWI arrests by saying that the officer could have arrested the defendant for public intoxication, but mistakenly arrested him or her for DWI.  The reasoning of these cases seems to be that since there were grounds for any proper arrest on the charge of public intoxication, and evidence sufficient to charge the defendant with DWI come trial, then the fact that the arrest for DWI itself was improper is harmless error.  The leading Texas cases on this issue appear to be Collins v. State and Warrick v. State .

              In Collins, the defendant was seen by a wrecker driver to be driving in an erratic manner.  The wrecker driver called the police and informed them of a possible DWI.  The wrecker driver continued following the erratic driver until the driver pulled into a service station and parked his vehicle.  When the police arrived a short time later the wrecker driver pointed them to Collins.  The first officer to arrive, Officer Burris, instructed a backup officer, Officer Shipp, to detain the Collins while he continued to question the wrecker driver.  Officer Burris then approached Collins and administered the field sobriety tests before arresting him for DWI.  In reviewing the record, the Court of Appeals stated that the evidence of DWI was insufficient.   The Court went on to say that the record was void of sufficient evidence to charge the defendant with public intoxication as there was no evidence that he was in any way a danger to himself or another person.

              In Warrick, two officers arrived at the scene of an accident and found two men arguing over who was at fault in the accident.  The arresting officer noticed that Warrick’s eyes were bloodshot, he was unsteady while walking, smelled of alcoholic beverages, and had slurred speech.  The officer then arrested Warrick for “investigation of DWI.”   While at the police station, Warrick was found to have marijuana in his pocket.  Warrick argued that the evidence of marijuana should have been suppressed because the arresting officer did not see Warrick driving his vehicle, thus his arrest was illegal.  The Court of Appeals, citing United States v. Fossler ,  held that when a defendant is arrested for a wrong offense, and there is no proof of sham or fraud on the part of the officers, and the charge which he was arrested for and the one he was charged with are closely related, then the arrest is still valid, and any evidence gained by such arrest is admissible.

              Thus, it appears that, in Texas, a police officer’s misdemeanor DWI arrest involving an accident, and any evidence the officer gains after such arrest, are admissible against the defendant if the Court believes that the officer was not making such arrest under fraudulent circumstances. 

· Practice Nugget ·

Defense counsel are well advised to request a suppression hearing and question the officer’s understanding of his power to make an arrest for a misdemeanor DWI when he did not observe the defendant driving.  The holdings of the cases leave open the possibility for law enforcement to two-step a defendant in order to gain evidence to be used against him.  If an officer wrongly arrests a person for DWI, knowing he does not have adequate grounds to charge the person with DWI, but then compels that person to submit to a breath test and perform field sobriety tests merely to get evidence sufficient to warrant a DWI charge, then counsel may have sufficient evidence of fraudulent activity on the part of law enforcement sufficient to suppress all such evidence gained.

§ 5:3                    --Vehicle stops

A police officer must have the reasonable suspicion that a driver of an

automobile has committed a crime in order to effect a legal car stop.  Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity. In determining if reasonable suspicion existed, the courts look at the totality of the circumstances to see if they justify the car stop.  The courts are, however, free from accepting any of the opinions of the officer.  They look only at the facts and the reasonable inferences drawn from them.   When evaluating the facts, the

court is permitted to consider a police officer’s training and experience in determining whether he acted reasonably under a particular set of facts.

              The degree of the suspected criminal activity is not a factor the courts review.  The officer may stop a person for any criminal activity, such as

equipment violation, moving violation, or felony.

              In Ford v. State , a Trooper observed a vehicle traveling closely behind another vehicle and stopped the car.  Upon making contact with the driver the Trooper smelled the strong odor of marijuana emanating from the passenger compartment of the vehicle.  The driver refused the officer’s request to search the vehicle.  The Trooper called for backup and searched the vehicle based on his belief he had probable cause based on the odor of marijuana.  Ford was arrested and charged with drug possession.  He filed a pre-trial motion to suppress all evidence as fruit of the poisonous tree, which was denied.  The Court of Criminal Appeals overturned the denial of the evidence suppression holding that the state failed to elicit any testimony that would allow the Court to objectively determine that Ford committed any traffic offense justifying the traffic stop.

              An officer may not rely solely on an anonymous tip that a driver is

intoxicated in order to justify a car stop. Reasonable suspicion must be more than a mere hunch or educated guess.  It must be based on specific articulable facts. 

§ 5:4                  -- --Length and intrusiveness of stop must be reasonably related to circumstances that justified the stop

              Texas Courts have recognized that there are three categories of interactions between the police and civilians: (1) encounters, (2) investigative detentions, and (3) arrests.   Police are permitted under the Fourth Amendment to the U.S. Constitution to briefly detain a person for investigative purposes if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.   The determination of reasonableness is a two-pronged inquiry: whether the officer’s action was justified at its inception and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

              In determining how to classify an interaction, the Courts are required to

evaluate all of the facts surrounding the interaction.  Whether a person is under arrest or subject to a temporary investigative detention is a matter of degree and depends upon the length of the detention, the amount of force employed, and whether the officer actually conducts an investigation.  

              The length and intrusiveness evaluation commanded by the Fourth

Amendment is nuanced and requires the Court to balance between the public

interest served and the individual's right to be free from arbitrary detentions and intrusions.   Texas Courts have long held that an officer must actually conduct an investigation during the time period they subject a citizen to an investigative detention.   However, the Courts have also held that if there is a delay it must be justified by a legitimate law enforcement purpose.

              In Belcher, an officer stopped the defendant after observing him commit several traffic violations.  The officer questioned the defendant for approximately seven minutes related to the traffic offenses he saw him commit.  He then contacted Officer Martin, and asked her to come to the scene and assume the DWI investigation. While waiting for Officer Martin to arrive the initial officer did not pursue a DWI investigation, but did allow Mr. Belcher to smoke and answer his cellphone.  During this delay the officer spoke with Mr. Belcher about a number of topics, but none related to his traffic offenses or anything related to a DWI investigation.  Officer Martin arrived on scene over 35 minutes after the initial car stop.  Officer Martin then conducted a DWI investigation

and arrested Belcher for DWI.  Belcher filed a motion to suppress alleging that the delay in conducting the DWI investigation violated his Fourth Amendment rights because it was unreasonable based on the totality of the circumstances.  While the Court of Appeals acknowledged that the delay in this case “approaches the edge of reasonableness under the Fourth Amendment,” it found the delay was reasonable by applying the Fourth Amendment fact-specific “standard for reasonableness.”   The Court based it’s decision on the fact that the initial officer contacted Officer Martin a number of times while waiting to get her ETA, Officer Martin could conduct the DWI investigation in two hours, while it would take the initial officer four hours, and the officer allowed Mr. Belcher to smoke and talk on his cellphone during the delay, “thus reducing to some extent the level of intrusion generated by the detention.”

              In other cases—

—a twenty minute delay to await the arrival of a DWI enforcement officer was a legitimate law enforcement purpose justifying the delay.

—a five to fifteen minute delay to await the arrival of a video camera so that the field sobriety tests could be recorded was a legitimate law enforcement purpose justifying the delay.

—a delay to await the arrival of a rookie officer for training purposes was a

legitimate law enforcement purpose justifying the delay.

§5:5                     -- --The parked car

· Practice Nugget ·

Texas cases are replete with factual scenarios where an officer approaches a parked vehicle and ultimately arrests an occupant for DWI.  These cases are fact dependent and counsel should carefully evaluate each fact and the logical conclusions drawn from them when preparing a defense.  The cases oftentimes turn on the logical conclusions drawn from the facts rather than a smoking gun fact itself.

              In Nicar v. State, the defendant was found guilty of involuntary manslaughter after his vehicle was found upside down in a drainage ditch.  Inside the vehicle were the defendant and a deceased friend, who had apparently died by drowning on gasoline that had leaked inside the vehicle after the collision.  The defendant made two extrajudicial statements to a doctor and the decedent’s wife stating that he (the defendant) was the

driver of the vehicle.  The vehicle was found ten minutes after the defendant had left a dance hall where both had been drinking.  It took an hour to extricate the defendant from the truck.  The defendant’s blood alcohol level at the hospital registered at .279.  The Court of Appeals upheld his conviction.

              In Duran v. State, the Court of Criminal Appeals overturned a conviction of a driver who rear-ended a car while trying to parallel park.  The defendant then entered a bar and drank for an hour before returning to his car where the police awaited his

arrival.  He was arrested and conviction of DWI.  In overturning his conviction, the Court found that no evidence fixed the time of the collision, nor whether the defendant was intoxicated at the time of the accident.

              In Coleman v. State, the defendant arrived at the scene of a multi-vehicle collision after the police began investigating.  There were no drivers in any vehicles at the time the police arrived.  The defendant admitted he was intoxicated, and that he was the driver of one of the vehicles involved in the collision.  The Court overturned his conviction, however, because the State failed to establish the time of the collision, thus could not prove that he was intoxicated while he operated a motor vehicle.

§ 5:6                    -- --Police approach, car pulls away

              One common fact pattern seen by defense attorneys and prosecutors alike is

where a police officer sees a car stopped on the side of a road and pulls up to check on the welfare of the occupants.  The car then abruptly pulls away, and the officer activates his emergency lights signaling the driver to stop.

              The United States Constitution protects persons against unreasonable searches and seizures. The Fourth Amendment protects people from being searched or seized by the police absent a warrant issued by a neutral magistrate based on probable cause. One exception to the protections guaranteed by the Fourth Amendment is investigative detentions as announced in Terry v. Ohio and as refined in Ybarra v. Illinois,

United States v. Cortez, Florida v. Bostick, and Minnesota v. Dickerson, .

              The Fourth Amendment protections are more stringently applied to fixed

residences than to automobiles. This is commonly called the “automobile exception.”  The exception is based on the premise that within a fixed residence there is a reduced opportunity for a suspect to dispose of evidence; thus, the police have the time to go to a magistrate and secure a warrant.  A vehicle, however, has “inherent mobility, which often makes obtaining a judicial warrant impracticable” and the driver of an automobile has a “diminished expectation of privacy.”

              If a police officer approaches a parked car and the engages in conversation

with the driver, and the driver freely engages in conversation with the officer, then the Fourth Amendment issues are not raised as this is a “voluntary encounter”.  A police officer is free to approach any person and talk with them without commanding their compliance to engage in conversation with the officer.  So long as a reasonable person would feel free to disregard the officer and go about his business, a police officer may approach and ask an individual questions, including whether that individual requires assistance, without implicating the Fourth Amendment.

              If instead of engaging in conversation with the officer, the citizen attempts to leave the situation, and the officer compels the citizen to remain, then the person is seized within the meaning of the Fourth Amendment.  “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”  Thus, if a citizen drives away as a the police pull up to talk with him, that person is seized within the meaning of the Fourth Amendment, and such seizure must be based on “reasonable suspicion”, or fall within a category of recognized exceptions to the Fourth Amendment.   

              One of the more common exceptions to the Fourth Amendment cited by prosecutors in such a situation is the “community caretaking” exception.  The U.S. Supreme Court, and the Texas Court of Criminal Appeals have recognized that police officers have more responsibilities than simply enforcing the laws; they are also charged with taking actions to protect citizens and the community at large, i.e. community caretaking activities.  Two Texas cases discuss the community caretaking exception to the Fourth Amendment:  Wright v. State, and Andrews v. State.

              In Wright, a police officer observed a vehicle traveling down the highway with a rear seat passenger leaning out an open window vomiting.  The officer stopped the vehicle to “basically make sure he was not being assaulted and to see if he needed medical attention.”     Both sides agreed that there was no criminal activity or traffic violation observed by the officer prior to stopping the vehicle.    Once stopped, the officer observed marijuana in plain view sitting in the console of the vehicle.  The driver was arrested and convicted of marijuana possession.  He filed a motion to suppress the marijuana evidence, but lost.  He then entered a no contest plea and appealed the Court’s denial of his motion to suppress.  The Third Court of Appeals overturned the Trial Court and ordered the evidence suppressed as fruit of the poisonous tree since both sides agreed that there were no observed traffic violations prior to the officer stopping the defendant.  The State appealed.

              The Court of Criminal Appeals observed that part of an officer’s duty was to “serve and protect”, and as part of these duties a police officer may stop and assist an individual whom a reasonable person—given the totality of the circumstances—would believe is in need of help.  The Court then gave the following factors that Courts should consider in reaching this determination:

(1)      the nature and level of the distress exhibited by the individual;

(2)      the location of the individual;

(3)      whether or not the individual was alone and/or had access to

assistance independent of that offered by the officer; and

(4)      to what extent the individual, if not assisted, presented a danger to

himself or others.

              The Court in Wright specifically refused to draw a distinction between whether it is a driver or a passenger who appears to need the police officer’s assistance. The Court then acknowledged that Texas Courts will recognize the community caretaking exception in Texas, but narrowly limited its applicability to “the most unusual circumstances” if the searches are conducted on “private, fixed property, or stops of persons located thereon.”

              In Andrews a trooper saw the defendant pull his vehicle to the side of a highway, and saw the passenger lean out the passenger window and vomit.  The trooper pulled behind the vehicle just as the vehicle began to pull away from the shoulder of the highway.  He activated his emergency lights and stopped the vehicle.  Upon conversing with the driver, he became suspicious that the driver was intoxicated and eventually arrested the driver for DWI.  The trooper testified that prior to talking with the driver he had no suspicion of criminal activity, but he stopped the driver because he was concerned about a possible illness.  Andrews filed a motion to suppress evidence based on the Fourth Amendment issue of unreasonable search and seizure.  The State argued, inter alia, that the trooper’s stop of Andrews fell within the community caretaking exception as announced by the Court of Criminal Appeals in Wright.

              The Court of Appeals at Waco evaluated the four factors announced in Wright and held that the community caretaking exception did not apply to Andrews because (1) the car was being operated legally on a public highway, (2) the passenger could have been aided by the driver, (3) none of the occupants indicated a need for assistance;, and (4) nothing indicated that the Troopers assistance would add comfort or welfare to the passenger.   Thus, the Court held that “[n]othing supported a reasonable belief that [the passenger] was a danger to [her]self or to others.”

              Other Texas Courts have struggled with the application of the Wright decision.  In Corbin v. State, the Texarkana Court of Appeals held that an officer’s belief that a driver was tired and in need of assistance was reasonable and refused to overturn a denial of his motion to suppress evidence.  In reviewing the Court of Appeals, the Court of Criminal Appeals held that the officer’s belief that the defendant was in need of assistance was unreasonable in light of the facts of the case and held that the community caretaking exception did not apply.

              In Morfin v. State, the San Antonio Court of Appeals held that a police officer stopping to check on a parked car in a high crime neighborhood, at an early morning hour, did fall into the community caretaking exception announced in Wright.

              In Chilman v. State, the Houston Court of Appeals held that a police officer’s actions fell within the community caretaking exception where he approached a car stopped in front of a barrier to Rice University in the early morning hours.  The Court found that the car was found in an unusual location, the passenger appeared confused by the barrier, the occupants were isolated with no one else to assist them, and they presented a danger to themselves or others if they attempted to remove the barrier.

§5:7                     -- --Pretextual stops

              A pretextual stop is defined, “in the most general sense, … one that is effectuated for an ulterior (i.e., pretextual) motive.”   Article I, Section 9 of the Texas Constitution states:

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

              The United States Supreme Court has held that an officer’s subjective intent in stopping a vehicle is irrelevant so long as the officer possessed the legal right to stop the vehicle for a traffic violation.   Thus, if a driver violates a traffic law and is stopped by a police officer, the defendant will not be permitted to argue that his Fourth Amendment rights were violated because the officer’s real motivation in stopping him was to investigate a separate crime than the traffic violation.  Some states, however, have interpreted their Constitution as giving more protection against pretextual stops than does the Fourth Amendment of the U.S. Constitution.

              The Texas Court of Criminal Appeals has recognized that there are three approaches, or tests, that are used throughout the United States: (1) the subjective test, (2) the objective test, and (3) the modified objective test.

              The subjective approach attempts to evaluate the officer’s subjective intent in effectuating a seizure.  The officer’s subjective intent is “relevant, even determinative, in gauging the reasonableness of a seizure.”

              Under the objective approach the “officer’s subjective motivation in effectuating a seizure is deemed irrelevant to the determination of whether the seizure was reasonable.  The result of the objective approach is to eliminate the doctrine of a pretextual search and seizure altogether because, if an officer’s “subjective intent” in effectuating a seizure is irrelevant, there can never be an illegal “pretext” for a seizure.

              The modified approach is summed up as a judicial inquiry into not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of a valid purpose.

              Prior to 1995, Texas Courts had “failed as ‘a model of clarity and concise legal analysis’” on the issue of whether a pretextual stop was violative of Article I, Section 9 of the Texas Constitution.  However, in 1995 the Court of Criminal Appeals explicitly adopted the objective approach to the question of whether pretextual stops are Constitutionally valid.

              In Crittenden v. State a police officer received a report of a suspicious vehicle located at a residence possibly attempting to buy drugs.  When the officer arrived he observed a white truck and spoke with the sole occupant, Crittenden.  After a brief conversation, Mr. Crittenden was allowed to leave.  As the truck left, a woman informed the officer that the vehicle that had just left was the vehicle that the police were called about.  The officer followed Mr. Crittenden until Mr. Crittenden failed to use a turn signal before making a turn, then stopped him.  During a consent search of his person, the officer found Mr. Crittenden possessed heroin and arrested him.  Crittenden attempted to suppress the evidence at a pre-trial hearing, but was denied, and later convicted.  Crittenden claimed on appeal that the stop and search of his person was pretextual and violative of Article 1 § 9 of the Texas Constitution.

              In an opinion by Justice Maloney of the Court of Criminal Appeals , the Court discussed the history of the issues related to pretextual stops and acknowledged that no clear bright line rules regarding such issues had ever been declared.  The Court then compared the language of the Fourth Amendment and of Article 1 § 9 of the Texas Constitution and found there was no significant difference in the text of the two provisions.  Thus, absent “some historically documented difference in attitude between the respective drafters, there would be no apparent reason to prefer an interpretation of Article I, § 9 any different than,” their interpretation of the Fourth Amendment as proclaimed in Garcia v. State,   The Court then clearly declared that Article I, § 9 shall be interpreted so “that an objectively valid traffic stop is not unlawful under Article I, § 9 just because the detaining officer had some ulterior motive for making it.”

§5:8                     --Pretextual arrests

              For a time under Texas law, pretextual arrests were evaluated under the modified objective test while pretextual stops were evaluated under the pure objective test.   In Garcia v. State, the Court of Criminal Appeals expressly adopted the objective standard analysis in determining whether a pretextual arrest is constitutionally permissible.

              In Garcia, two El Paso officers observed a Cadillac parked at the curb in front of a known “shooting gallery” for drug users.  The officers did not recognize the vehicle, and had no evidence suggesting the owner of the Cadillac was in the house. An hour later, while patrolling the same area, they saw the Cadillac drive through an intersection in front of them. They began following the Cadillac and observed it drive through an intersection without stopping at a posted stop sign. The officers then activated their emergency equipment and attempted to stop the driver. The driver fled, in his car at first, then on foot. The officers pursued and finally caught and arrested the driver inside a house belonging to an elderly woman who was outside when Garcia entered her house and tried to hide from the police. The police arrested him, and found several small bags of what appeared to be cocaine.

              The Trial Court in Garcia suppressed the evidence on a finding that the officers’ stop and arrest of Garcia was pretextual, thus violative of the Fourth Amendment and was fruit of the poisonous tree.  The State appealed and the Appellate Court vacated the Trial Court’s order and remanded the case for trial.  The Court of Criminal Appeals granted Garcia’s petition to address the “pretextual arrest” theory.

              In reviewing the case, the Court of Criminal Appeals acknowledged that the leading Texas case on pretextual arrest issues was Black v. State.   The Court in Garcia recognized that in Black the officer’s subjective intent was to question Black about the murder, and that Black specifically held that an arrest for one crime is not permitted to be used as a pretext to search for evidence of another.”

              In Black the Court relied on the United States Court of Appeals, Fifth Circuit decision in Amador-Gonzalez v. United States. Amador-Gonzalez was, however, expressly overturned by United States v. Causey, just a few months after Black was decided.  Therefore, the underpinning analysis relied on by the Black court was no longer valid.

              After discussing the analysis applied by the various Federal Circuits, the Court of Criminal Appeals in Garcia stated, “[b]ecause we find that, in practice, the modified objective approach seems at worst unworkable and at best highly problematic, we reject it in favor of the prevailing, entirely objective approach adopted by the majority of the federal circuit courts.”   The Court went on to say that “[t]he above-cited Supreme Court and federal court cases persuade us that, for Fourth Amendment purposes, the validity of an arrest or stop should be determined solely by analyzing objectively the facts surrounding the event.”

              The Garcia Court stated two reasons for its finding:  (1) it makes little sense to maintain the pretext arrest doctrine solely to deter the subjectively bad intensions of law enforcement personnel when these intentions do not ultimately manifest themselves in any objectively ascertainable Fourth Amendment Violations, and (2) the subjective intent of a police officer is neither easily nor consistently ascertained by courts.

              It appears that in Crittenden v. State, the Court of Criminal Appeals applied the same analytical construct when determining whether a pretextual arrest violates Article I, § 9 of the Texas Constitution.  The Court reiterated that police motivation will not vitiate an otherwise lawful traffic stop and seemed to express that there is no analytical difference between analyzing a pretextual arrest and a pretextual stop by saying, “[w]hy we should treat a claim of pretext stop under a different standard than we would analyze a claim of pretext arrest is something that, frankly, we cannot now explain.”  The Court applied the objective analysis to the facts of the case.

§5:9                 --Mistaken arrests

              A mistaken arrest is best described as where an officer, when acting on otherwise reliable information, arrests a suspect for a crime.  The issue that usually arises is that the police seize evidence incident to the arrest in accordance with that exception to the Fourth Amendment.

              In Spiller v. Texas, an undercover officer purchased crack cocaine from an

individual at a club.  After leaving the club the undercover officer radioed a police raid team and gave the description of the seller.  The raid team entered the club and arrested Spiller.  On the day of trial the undercover officer realized that Spiller was not the individual from whom he had purchased the crack cocaine.  Spiller accepted a plea bargained agreement and pled guilty to a lesser charge, then took an appeal on the

issue of mistaken identity.

              The Court of Appeals in Spiller held that “[t]he arrest of a person who is mistakenly thought to be someone else is valid if the arresting officer (a) has probable cause to arrest the person sought, and (b) reasonably believed the person arrested was the person sought.”   After evaluating both prongs of this test,

the Court upheld the trial court’s denial of his motion to suppress, and upheld Spiller’s conviction.

§ 5:10                --Good faith exception to the exclusionary rule

              The U.S. Supreme Court, in United States v. Leon, recognized a good faith exception to the exclusionary rule of the Fourth Amendment.  In Leon, police officers served numerous facially valid search warrants executed by a neutral and detached magistrate.  After executing the warrants and seizing evidence, the defendant was arrested and charged with drug offenses.  The defendant filed a motion to suppress the seized evidence on the grounds that the affidavit was insufficient to establish probable cause, therefore the search and resulting arrest were fruit of the poisonous tree, and illegal.  The trial court granted the defense motion in part.  The Court of Appeals affirmed the trial court, and the government appealed to the Supreme Court.  The Supreme Court, for the first time, recognized a “good faith exception” to the exclusionary rule.

              The exclusionary rule is a “judicially created remedy designed to safeguard Fourth Amendment rights generally…”   The rule requires that evidence seized in violation of a Fourth Amendment right is inadmissible against the person whose rights were violated.  In Leon, the Supreme Court considered whether the exclusionary rule was appropriately applied in situations where the officers who violated the rights of the accused nonetheless acted in good faith that they were acting in accordance with the Fourth Amendment.  Ultimately, the Supreme Court found that given the historical purposes of the Fourth Amendment it should, and did, recognize a “good faith” exception to the exclusionary rule.

              The federal exclusionary rule applies only to that evidence illegally seized by law enforcement officers, while the Texas statutory exclusion rule applies to evidence illegally seized by anyone.

              In Miles v. State, Mr. Miles, driving a Corvette, crashed into the rear of a limousine.  The occupants of the limousine exited the car and inspected the damage with Mr. Miles.  The limousine occupants noticed that Mr. Miles smelled of alcohol and appeared intoxicated.  Several tow truck operators arrived on scene and offered their service while waiting for the police to arrive.  Before the police arrived, Mr. Miles re-entered his car and drove away.  Six tow operators followed Mr. Miles as he drove away.  They attempted to stop him numerous times, and finally “corralled” him in a parking lot.  One tow operator attempted to remove the keys from Mr. Miles vehicle, but Mr. Miles drew a gun and threatened the driver.  The police arrived a few minutes later.  Mr. Miles filed a motion to suppress claiming, inter alia, that the tow operator had violated various traffic laws in effecting a citizen’s arrest, thus all evidence against him obtained as a result of the tow operator’s violation fall within the statutory exclusionary rule which states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in

evidence against the accused on the trial of any criminal case.

              The trial court in Miles denied Mr. Miles motion to suppress, and the Court of Appeals upheld the decision.  The Court of Criminal Appeals, in a plurality opinion, held that the primary purpose of Article 38.23 (a) is to deter unlawful actions that violate the rights of criminal suspects.  Thus, the law which is violated in obtaining evidence must exist for the purpose of regulating the acquisition of evidence to be used in a criminal

case.”   The Court then found that the laws regulating the flow of traffic do not fall into that category.

· Practice Nugget ·

While not addressed in the Miles opinion, it would seem that the “good faith exception” would, likewise, be applied to a private citizen in making a citizens arrest.

 §5:11                 --Anonymous tips

              It has been widely recognized that the reliability of a citizen-informant is generally shown by the very nature of the circumstances under which the incriminating information became known to him or her.  When reviewing the legality of a stop, courts look only at those facts known to the officer at the inception of the stop – a stop or search unlawful at its inception may not be validated by what it turns up.

§ 5:12                --Stops based on tips from known informant  

• Supreme Court of the United States
  • Alabama v. White, 496 U.S. 325 (1990)
    • An anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is “by hypothesis largely unknown, and unknowable.” Citing Illinois v. Gates, 462 U.S. 213 at 237 (1983).
    • Court held that anonymous telephone tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make investigatory stop of defendant's vehicle even though it may be insufficient to support an arrest or search warrant. U.S.C.A. Const.Amend.4.
  • Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968)
    •  A police officer may stop and briefly detain a person for investigative purposes only if the officer, in light of his experience, has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.
    • “The officer [making a Terry stop] ... must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.”
   

• Court of Appeals of Texas – Austin
  • Davis v. State, 989 S.W.2d 859 (Tex.App.-Austin, 1999)
    • Even though this is an appellate decision, it is a good case in that it specifically discusses the use of anonymous tips in Texas.
    • Factors to be considered in determining how much weight the anonymous tip deserves include an officer's prior knowledge and experience and his corroboration of the details of the tip.
    • Anonymous tip usually will justify initiation of police investigation, but anonymous tip or telephone call alone rarely will establish requisite level of suspicion necessary to justify investigative detention. U.S.C.A. Const.Amend. 4.

§ 5:13                  --Informant’s information must be current 

• United States Court of Appeals, 5th Circuit
  • U.S. v. Martinez, 486 F.3d 855 (C.A.5 [Tex.], 2007)
    • An informant’s tip is permissible under Terry only when the officer has reasonable suspicion supported by articulable facts that criminal activity may be afoot. An informant’s tip may, in certain cases, provide reasonable suspicion depending on various factors, including: the credibility and reliability of the informant, the specificity of the information contained in the tip or report, the extent to which the information in the tip or report can be verified by officers in the field, and whether the tip or report concerns active or recent activity, or has instead gone stale.
    • The police did not have to corroborate this information in the field, provided they had some other basis for believing its truth. In most cases this basis is the informant, whose reliability is established either by his or her past dealings with police, or by the specifics of the information that he or she provides. In this case, the police had neither, which made the need to corroborate the little information they did have paramount.
  • U.S. v. Roch, 5 F.3d 894 (C.A.5 [Tex.], 1993)
    • “Reasonable suspicion” may be based on information supplied by a confidential informant if the information posesses “indicia of reliability.”

• Court of Criminal Appeals of Texas
  • Zweig v. State, 74 Tex.Crim. 306, 171 S.W. 747 (Tex.Crim.App. 1913)
    • This case shows that even though the U.S. Constitution does not give the right to grand jury proceedings, the Texas Constitution does in felony cases.
    • The requisite of indictment by a grand jury was designed to protect an individual against unjust prosecution without sufficient cause, said indictment informing the accused of the nature of the charges against him so that he may adequately prepare his defense.
  • King v. State, 473 S.W.2d 43 (Tex.Crim.App. Nov 23, 1971)
    • Held that statute permitting person represented by counsel to waive formal accusation or presentment of grand jury indictment in noncapital felony case was not violative of constitutional provision requiring an indictment in all felony cases or of provision governing jurisdiction of district courts, and where there had been valid waiver, trial court could proceed on information.
    • See above for statute in question: Art. 1.141 of Texas Code of Criminal Procedure.
  • Barnes v. State, 134 Tex.Crim. 461, 116 S.W.2d 408 (Tex.Crim.App., 1938)
    • This case discusses the function of the grand jury in Texas.
    • The grand jury alone are the judges of the competency and sufficiency of the testimony upon which they act in returning a bill of indictment.
    • Where grand jury at former term of court investigated offense with which defendant was charged and heard testimony, which was taken down by court reporter, transcribed, and submitted to grand jury, which returned the indictment on which defendant was prosecuted, motion to quash indictment on ground that grand jury did not summon, examine, or hear any witness and did not hear competent evidence on which to predicate its finding was properly overruled.
    • The “grand jury” is a separate tribunal whose proceedings are secret, and the jury summon witnesses and the like and determine for themselves whether there are sufficient facts to justify an indictment.

§ 5:22                  --Reasonable cause and implied consent 

• Court of Criminal Appeals of Texas
  • State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Crim.App. 1990)
    • This case shows the limitation to the right to an examining trial.
    • Adult accused of criminal offense is not entitled to examining trial before case may be presented to grand jury.
    • The inherent justification for the hearing is to put the state to its burden of proving that probable cause exists to believe the accused committed the offense charged against him or her. Thus, the justification for the hearing ceases at the time the grand jury returns its own probable cause determination via the indictment.

§ 5:23                  --Request for license and registration

• Texas Transportation Code
  • Chapter 724. Implied Consent.
    • §724.011.  CONSENT TO TAKING OF SPECIMEN. 
      • (a)  If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person's body of a controlled substance, drug, dangerous drug, or other substance.
      • (b)  A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.
    • §724.012
      • (a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:
        • (1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or
        • (2) was in violation of Section 106.041, Alcoholic Beverage Code.
      • (b) A peace officer shall require the taking of a specimen of the person's breath or blood if:
        • (1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;
        • (2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense;
        • (3) at the time of the arrest the officer reasonably believes that as a direct result of the accident:
          • (A) any individual has died or will die; or
          • (B) an individual other than the person has suffered serious bodily injury; and
        • (4) the person refuses the officer's request to submit to the taking of a specimen voluntarily.
      • (c) The peace officer shall designate the type of specimen to be taken.
      • (d) In this section, “serious bodily injury” has the meaning assigned by Section 1.07, Penal Code.